In re Joseph A. Hurley, Esquire

Summary

The Delaware Supreme Court affirmed a civil contempt order against attorney Joseph A. Hurley for violating a gag order governing public comments about criminal proceedings. The court held that Hurley’s comments about the prosecutor and a victim had a substantial likelihood of materially prejudicing pending proceedings, rejected his safe-h harbor and First Amendment arguments, and denied his motion for judicial notice.

Holdings

1. The Superior Court did not abuse its discretion by finding that Hurley's statement that he was horrified by the prosecutor's sentencing comments had a substantial likelihood of materially prejudicing an upcoming criminal proceeding and therefore violated the gag order.
2. The self-help safe harbor did not protect Hurley's statement because expressing horror was not reasonably necessary to correct the alleged prejudice, the statement responded to courtroom comments rather than adverse publicity, and it concerned protection of third parties rather than Hurley's client.
3. The Superior Court did not abuse its discretion by finding that Hurley's statement that the victim had put herself there had a substantial likelihood of materially prejudicing pending proceedings and violated the gag order.
4. Hurley's passing references to First Amendment protections did not demonstrate that enforcement of the gag order was unconstitutional or that the Superior Court erred.
5. The Court denied Hurley's motion for judicial notice because the extent to which the comments were more broadly published was undisputedly immaterial to the outcome.

Questions Presented

1. Whether the Superior Court abused its discretion by finding that Hurley's public criticism of the prosecutor had a substantial likelihood of materially prejudicing pending criminal proceedings.
2. Whether Hurley's criticism of the prosecutor was protected by the self-help safe harbor in Delaware Lawyers' Rule of Professional Conduct 3.6(c).
3. Whether the Superior Court abused its discretion by finding that Hurley's victim-blaming comment had a substantial likelihood of materially prejudicing pending criminal proceedings.
4. Whether the First Amendment protected Hurley's public comments from enforcement of the gag order.
5. Whether the Supreme Court should take judicial notice of publications concerning the Conaway prosecution.

Disposition

affirmed